NYT bank story redux: Fitzmas for righties?

posted at 3:18 pm on June 24, 2006 by Allahpundit

To prosecute or not to prosecute? Bryan and I took up the debate in the comments to this post last night. As usual, Moran’s with me:

From a purely practical point of view, making Keller and the Times reporters do the perp walk would cause a constitutional crisis no matter how “legal” the prosecutions would be or how justifiable they would be under the present circumstances. Nearly every media outlet in the country would condemn it and it would certainly set off a Congressional row. It may actually end up being much more trouble than those gentlemen are worth. In fact, the prosecutions may have the opposite effect that Powerline envisions. Just to prove how brave they are, journalists would take it upon themselves perhaps to publish all sorts of classified information, daring the Department of Justice to prosecute them.

Bryan makes a compelling case, though, and he’s probably got the balance of righty opinion on his side. John Hinderaker raises a good point:

Meanwhile, former Defense Intelligence Agency analyst Ronald N. Montaperto pled guilty yesterday to passing classified information to China. He will shortly be sentenced to prison. But the New York Times has repeatedly fed far more vital and more secret information to al Qaeda. We are not at war with China. We are at war with al Qaeda. I understand why Monaperto is going to jail. I do not understand why the dozens of CIA and New York Times employees who have peristently leaked classified information to al Qaeda are, apparently, not going to jail.

Why the distinction between Montaperto and the Times? It can’t be the fact that one was bound by a confidentiality agreement and the other wasn’t. If Montaperto had passed the information to China via a middleman, surely the middleman would be prosecuted regardless of whether he’d signed an agreement himself. It has to turn on intent, i.e., the middleman aims to undermine secret government operations whereas the Times, ahem, merely aims to “increase government transparency” or “promote public debate” or whichever phrase they’ve plucked from their Orwell-to-English thesaurus. Their target audiences are evidence in that regard: the middleman serves one client, an enemy government, whereas the Times serves millions, only a small percentage of which are enemy combatants. Thus is the Times’s treachery sufficiently diluted as to make the passing of sensitive information to terrorists “incidental.”

Here’s the DOJ’s page on 18 U.S.C. 371, the federal conspiracy statute. It is, indeed, all about intent. There are other, better statutes to nail the Times with, though, argues Gabriel Schoenfeld in today’s Daily Standard — and what’s more, they’re constitutional:

Given the uproar a prosecution of the Times would provoke, the attorney general’s cautious approach is certainly understandable. But what might look like a prudent exercise of prosecutorial discretion will, in the face of the Times’s increasingly reckless behavior, send a terrible message. The Comint statute, like numerous other laws on the books limiting speech in such disparate realms as libel, privacy, and commercial activity, is fully compatible with the First Amendment. It was passed to deal with circumstances that are both dangerous and rare; the destruction of the World Trade Center and the continuing efforts by terrorists to strike again have thrust just such circumstances upon us.

If the Justice Department chooses not to prosecute the Times, its inaction will turn this statute into a dead letter. At stake here for Attorney General Gonzales to contemplate is not just the right to defend ourselves from another Pearl Harbor. Can it really be the government’s position that, in the middle of a war in which we have been attacked on our own soil, the power to classify or declassify vital secrets should be taken away from elected officials acting in accord with laws set by Congress and bestowed on a private institution accountable to no one?

SWIFT itself has posted a statement about the Times’s expose on its website. Money graf:

SWIFT negotiated with the U.S. Treasury over the scope and oversight of the subpoenas. Through this process, SWIFT received significant protections and assurances as to the purpose, confidentiality, oversight and control of the limited sets of data produced under the subpoenas. Independent audit controls provide additional assurance that these protections are fully complied with.

All of these actions have been undertaken with advice from international and U.S. legal counsel and following our longstanding procedures on compliance, established by our Board.

Bryan thinks I’m crazy for believing that a boycott of the paper’s advertisers is either possible or would do much damage. Perhaps. But the anger among right-wing pols and pundits is pushing ten and holding steady. If Patterico’s angry enough to unsubscribe to his chief source of content, what will other Americans be willing to do?

I’ll leave you with Heather MacDonald ratcheting up the outrage at the Weekly Standard and Victor Comras’s insightful post on Counterterrorism Blog ratcheting it right back down.

Update: Bryan cited Ace‘s point about blackmail during our comments debate and now Powerline’s linked it too, so I’ll reproduce it here:

I’m quite sure the reasonable liberals at the NYT and WaPo know full well that programs like this are absolutely vital, and their secrecy is likewise vital. However, they have made the most anti-American and evil sort of decision: While tools like this are vital for saving American lives, they will not permit any Republican President to use them. Only Democratic Presidents are permitted to employ the full panoply of powers for protecting American lives.

It’s blackmail, pure and simple. Either let a Democrat into the White House, or we will continue to sabotage American security and, in effect, kill Americans. We will keep secrets when a Democrat is in office, but not a Republican. So we offer the American people a choice: Let the politicians we favor run the country, or we will help Al Qaeda murder you.

This is one of those things you’re expected to nod along with to prove the depth of your conservative outrage, but ascribing murderous intent and dark quasi-conspiratorial motives to them is a bridge too far for me. Ace thinks they’re willing to treat American lives as pawns, to calculated effect for the most cynical political gain; I think they published the story in good faith according to the insane belief system they’ve followed for five years: namely, that George Bush is a greater threat to America than Islamic fundamentalism, and therefore job one for the press is interfering with any perceived expansion of his power no matter what the collateral damage might be. It’s not that they’re cavalier about Americans being killed (after all, Risen and Lichtblau held their original NSA story for more than a year after Bush requested that they not publish it), it’s just that ultimately they’re willing to take the risk in order to expose the machinery of Bush’s impending fascist theocracy.

Besides, if their first goal is getting Democrats elected, why blow the whistle on a legal and effective counterterror measure which both Democratic and Republican officials are quoted in the article as defending? It won’t make them any friends among independents and it’s got conservatives angrier than they’ve been in months. Rove should use it to full effect in the midterms, too, now that it’s public. Highlight the success of the program, emphasize how Republican executive power is keeping us safe. Run campaign ads quoting the parts of the article describing how they used SWIFT to catch Hambali. The Times should have, and probably did, anticipate the backlash — in which case, where’s the blackmail?

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The fact that Victor Comras unwisely included this information buried in a U.N. report somewhere does not mean the terrorists were alerted. Perhaps it could provide a technical defense to the leakers and journalists in a prosecution; I don’t know. But it doesn’t erase the moral stain from their actions.

Look at Gabriel Schoenfeld’s longer piece in Commentary, which I linked yesterday. The Chicago Tribune printed a story that implied, but didn’t clearly say, that we had broken the Japanese code during WWII. Schoenfeld says:

The War Department and the Justice Department raised the question of criminal proceedings against the Tribune under the Espionage Act of 1917. By August 1942, prosecutors brought the paper before a federal grand jury. But fearful of alerting the Japanese, and running up against an early version of what would come to be known as graymail, the government balked at providing jurors with yet more highly secret information that would be necessary to demonstrate the damage done.

Thus, in the end, the Tribune managed to escape criminal prosecution. For their part, the Japanese either never got wind of the story circulating in the United States or were so convinced that their naval codes were unbreakable that they dismissed its significance.

They probably dismissed its significance because the breaking of the code was only implied, not clearly announced like these stories were.

But the point is: the fact that information may be publicly available somewhere does not justify splashing it all over the front pages of national newspapers. Not when it is classified information on a responsible, legal, and effective anti-terror program.

By the way, I’ll still read the LAT online. Don’t think I’ll give up criticizing them. I just won’t subsidize their irresponsible behavior with a subsciption.

I think the idea that one would have to be scared of the media’s defence is wrong. Let Bill Keller et al come on TV every night and defend publishing national secrets. It may sway the beltway crowd, but I strongly suspect that flyover country where I am would be entirely unconvinced.

Take it one step further. Take the paper from the day of the story, get a list of major advertisers. Call them and tell them you won’t do business with them for two months. Get others to do it. That gets more attention at the LA Times than the cancellation of a subscription.

But the point is: the fact that information may be publicly available somewhere does not justify splashing it all over the front pages of national newspapers.

I agree. A whisper isn’t a bullhorn. The part of Comras’s post I found valuable was the info towards the end about flaws in SWIFT’s tracking system and terrorists maneuvering outside it. That does reduce the outrage over the practical effect of the Times piece, although of course not the outrage over their malignant intent.

By the way, I’ll still read the LAT online. Don’t think I’ll give up criticizing them. I just won’t subsidize their irresponsible behavior with a subsciption.

Depending upon how much more you’ll read online now that you’ve cancelled, you might end up offsetting the lost subscription revenue with extra Internet ad revenue. (Although that’s unlikely.)

It is NOT the NYTs right to decide what is classified, and the intent was CLEARLY only to attempt to garner another anti American Pulitzer prize by outing a secret. They can excuse themselves and wrap themselves in “the public interest” all they want, but anyone looking at this situation with a nonpartisan eye will see through that in a heartbeat.

If the NTY and these two reporters do NOT cough up the source of this information, they should be prosecuted. THEY have “Freedom of the Press”, the source however broke the law, and IF they do not say who the source is, they are aiding and abbeting in a felony, possibly treason, in a time of National Crises.

As I’ve said before, don’t go after the Times, but FORCE them to give up the source. It would do more to help National Security than anything else at this point.

This is an old tactic for the Left, going on and on about the cessation of “liberties” and then creating a scenario where they can shout ” see,told you so”.
I think everone agrees that the source of the leak needs to be prosecuted, the debate is whether the reporters and editors should be also.I think they want to be prosecuted,think of the cashe that would give them in the moonbat circles.You thought “Free Mumia” was sick,it would pale in comparison.

Boycotting the advertisers is decent – but why link to the Times? They published this to sell papers and create traffic, which they’ve succeeded in doing, and all of the right-wing bloggers who provided a link to the story only helped them.

If the NYT posts an article like this in the future, right-wing blogs should not provide a link to it. Links only reward them with traffic for their advertising rates.

I’m with robo,the Justice Department needs to leave no stone unturned in identifying and prosecuting the “sources” that disreputable journalists use for their “dirt”. Newspapers such as NY Times and LA Times are simply businesses that focus on the bottom line and use the scoops obtained by their minion journalists in the competitive and dwindling print media to attract readers. Investigative journalists are like male dogs who seek out a bitch in heat to satisfy their cravings. The Justice Department needs to get a handle on the “bitches in heat”.

Beatcanvas is right about removing the links to the times. Lets face it. Last week we were talking about how smart Ann Coulture was, since her comments generated a lot of free press for her book. Isn’t us being outraged at the times and sending traffic their way the same thing?

How can we go about getting a list of their advertisers? I could try to lift the paper out of the garbage somewhere I guesse. I would be interested to see what would happen if a page was put up announcing eevery second week of the month to be a “Boycott the times advertisers” week, and said page had a list of their advertisers.

It is time to go after the leakers. Bush is a fool to think the Dems appreciate his leniency. They are still going after Cheney and Rove and attempting to impeach him. If Bush is unable or unwilling to protect our borders and secure the nation he should resign.

It’s amazing what eight years of salting all the bureaucracies with Clinton lackeys will do when a Republican administration takes power. The Drive-by Media gets to control the meaning of events. People who leak information to DBM that hurts Republicans are Whistleblowers, while people who leak information that hurts Democrats are traitors that endanger lives and destroy our National Security.

Clinton allowed this country to bleed millons of dollars yearly to Africa to fight AIDS and justified it by saying AIDS was a National Security issue. Clinton got us involved in the Balkans claiming intervening in their civil war was a National Security issue. BUT Bush attacks Iraq to destroy Al Qaeda to prevent another 9/11, and Dem operatives within the Federal Bureaucracy continue to leak information to the DBM that damages our National Security and our ability to fight Al Qaeda?

Someone has their priorities screwed up, and it ain’t the Bush Administration.

I don’t care what it tkaes, they HAVE to root out these Anti-American idiots in the intel agencies. They shouldn’t need to be told this, it should be second nature to always watch your back so you don’t have to cover your ass.

What the hell do you think the collateral damage is? It is treating American lives as pawns through death and destruction. Talk about a distinction without a difference. And good faith? In the liberal media there is no such thing as good faith by any set of standards or beliefs. You gotta get your head outta your ass and give this more serious thought. How could anyone possible give the benefit of any doubt to the NYT after all the treacherous and treasonous acts they have committed?
The only retribution we may possibly see is the two writers doing the perp walk for their refusal to reveal the source of the leak. And that is predicated on the one in a thousand chance that we draw a judge with some guts. There is no punishment too great in my opinion for the traitors at both newspapers, up to and including Second Amendment justice. It is justifiable in war time. These people have no compunction about the taking of more innocent American lives by enemies of this country. Should we classify Risen and Lichtblau as anything other than enemies and treat them any differently? Not in my book . . . .

These people have no compunction about the taking of more innocent American lives by enemies of this country.

Demonizing them to that extent only makes you sound ridiculous. How do you know they have “no compunction”? Why’d they hold the NSA story for more than a year, then? What information haven’t they published because doing so might have jeopardized American security interests? Do you think literally every scrap of data they get ends up in the paper?

As for whether there’s a difference between my explanation and Ace’s, there most certainly is. According to Ace, if the Times has a story that’s sure to get a lot of Americans killed, they’re more likely to run it; so much the better for their “blackmail” efforts, right? I think they’re less likely to run it, and as evidence of that, I’d point you to the fact that, according to Lichtblau, they spent weeks listening to the administration’s objections and debating amongst themselves whether to publish it.

It galls me to no end that I’m put in the position of defending the Times because I “only” think they’re paranoid and sick with Bush-hatred instead of completely indifferent to innocent people being murdered. Honestly, sometimes I wonder how you guys would react if they finally caught Bush in an real, serious abuse of power. Would the propriety of it depend entirely upon whether, and how many, lives were saved?

I think they’re less likely to run it, and as evidence of that, I’d point you to the fact that, according to Lichtblau, they spent weeks listening to the administration’s objections and debating amongst themselves whether to publish it.

And then went ahead and published it anyway.

You’re right. They’re saints. I retract my criticisms immediately and move that we recommend Lichtblau, Risen and the Rosenbergs (retroactively) for the Presidential Medal of Freedom in consideration of their admirable restraint when weighing Pulitzers against the lives of Americans.

Ultimately, however, I don’t care one little bit about their motivations, I care only about the effect which is that a program that, demonstrably, used to help us nab high-ranking terrorists is less likely to yield results now as a direct result of their actions.

And, logically, therefore it has become more likely, not less or equally, that Americans get killed by terrorist actions.

Whether Risen and Lichtblau had their hearts in the right place or did it with the best of intentions matters less to me than the price of hummus in Ulan Bator.

Yes. That’s why I said in the immediately preceding comment that “they’re paranoid and sick with Bush-hatred.” It’s because I think they’re saints.

Ultimately, however, I don’t care one little bit about their motivations, I care only about the effect which is that a program that, demonstrably, used to help us nab high-ranking terrorists is less likely to yield results now as a direct result of their actions.

That’s an entirely fair point and I have no argument with it. I’m not defending what they did. All I’m saying is that I disagree with some people’s characterizations of their motives. And Romeo — criminal law is totally focused on the defendant’s mental state (“mens rea”). Except for a very few crimes (like statutory rape), mens rea is an element that always needs to be proved. I’m not sure how it figures into the statutes cited in Gabriel Schoenfeld’s piece, but we may soon find out.

Allahpundit,
I find myself in an uncomfortable position of taking you on in this debate. I have always respected your work.
However, I think you are missing the point as evidenced by your closing paragraph. This is not about defending the President; your attempt to analogize a possible attempt by the President to save lives through an abuse of power to the treasonous acts of Risen and Lichtblau does not stand scrutiny. The former is an “ends justifies the means” argument. The latter has nothing to do with that unless you are asserting that the careful deliberation of the NYT whether to publish the leaks justifies the publication. It is a complete non-sequitur.
Risen allegedly deferred publication of the NSA story for a year. It is my contention that he did so in order to give him time to write a book. He did and it was published almost simultaneously with the publication of the original story in the Times.
What I don’t understand is your criticism of my “demonizing” these two traitors. They deserve less than demonization in your opinion? Why? Again, because they allegedly deliberated whether to publish the leaks? We are to give them credit for that? On what grounds? If Lee Harvey Oswald deliberated for weeks before deciding to shoot JFK, should he be less than demonized or given credit for his thoughtfulness? C’mon, you are better than this weak attempt to induce a moderate tone in the debate. Your question of what information haven’t they published is completely irrelevant. They published a top secret operation that was effectively assisting American operatives in locating individuals funding terrorism in this and other countries. You cannot mitigate that by inferring that they are not bad guys because they may not have published all they know about this or other covert operations. That is utterly ridiculous and not germaine to the issue at hand, i.e., they revealed an operation and probably jeopardized the lives of Americans by allowing terrorism bankers to change their tactics and avoid apprehension to continue their deadly activities. That is the issue and there exists no possible mitigation for that treasonous act.
Do you have any kind of personal relationship with Risen, Lichtblau, or someone else at the NYT? If so, just say so; we will understand your reluctance to condemn them. If not, you had better come up with reasons other than the inane ones you have stated thusfar for refusing to unconditionally condemn them. Mere demonization of these two traitors is way too mild . . . .

Sorry. I disagree. The NYTimes broke the law and so did the authors. There is no exemption in the Espionage Act for the press. The minute they received the information from the leaker, they were obligated by law to report it to the FBI. And we know that they never do that.

The act of publishing violated another section of the act as well, because retransmission is also a federal crime.

There is no federal “press shield” law that gives them “safe harbor” to recieve and retransmit classified information.

If the paper and the reports get a pass by the DoJ, then the leaks will not stop, the secrets will continue to be blown by the Times, and our lives and the lives of our soldiers will continue to be endangered by a press that will justifiably belief that there are NO restrictions on their behavior.

Lt. Col. William Pierson:…I’m happy to take any questions you might have with the understanding that there are certain sensitive areas that I’m just not going to get into. Particularly, information that might be useful to the enemy. Yes?

Reporter #1: What date are we going to start the ground attack?

Lt. Col. William Pierson: Well, as I mentioned a moment ago, there are certain sensitive areas which we are just not going to go into, and that is certainly one of them. Yes?

Reporter #2: Sir, knowing what you know, where would you say our forces are most vulnerable to attack, and how could the Iraqis best exploit those weaknesses?

Lt. Col. William Pierson: Well, again, this falls into the area of information that might be useful to the enemy, and I just can’t divulge it right now.

…

Reporter #4: I have a two-part question. Are we planning an amphibious invasion of Kuwait, and if so, where exactly will that be?

…

Reporter #5: I understand that there are passwords that our troops use on the front lines. Could you give us some examples of those?

…

Reporter #6: Yeah! Are we planning an amphibious invasion of Kuwait? And if so, where?

Lt. Col. William Pierson: I believe that question was asked and if you recall, I already answered it, or said I could not answer.

Reporter #7: Sir, what would be the one piece of information that would be most dangerous for the Iraqis to know?

…

Reporter #9: Is there anything that you can tell us that would lower the morale of our fighting men?

Lt. Col. William Pierson: No. Really, the only thing we’re at liberty to say at this time is, “Live, from New York, it’s Saturday Night!

While the SNL “press” is clearly an exaggeration, it is not much of one.

Allah, you need to re-evaluate your existance and you value as a human being.

If we are created equal, then we do not have the right to weigh the right of other to live unless our right to live is being threatened.

To weigh other’s life against anything other than life itself is immoral. Should we weigh life against, say, money, fame, or knowledge? Do we knowingly let people die so we can gain money, fame, or knowledge? I know some do. NY TIme does that all the time.

Your own value as a human being can only be asserted when you place others on the same scale you place yourself on. If it is your son that is serving in Iraq, I think you may have a different opinion about NY Times.

I feel obligated to condemn NY Times because I feel the pain of those parents whose sons have made the ultimate sacrifice so I can celebrate July 4.

Yes. That’s why I said in the immediately preceding comment that “they’re paranoid and sick with Bush-hatred.” It’s because I think they’re saints.

Ouch. Touche :-)

I guess it was just the bit about how they’d debated among themselves as proof of their reluctance or restraint… Rubbed me the wrong way. Anyway. Not important. Fair enough. Point taken.

Anyway, as you correctly point out, none of us are mindreaders, so you’re definitely right in saying that there’s room for doubt as to their motives. Who knows other than themselves? I may harbor my own ideas, but I’m certainly not about to claim that I know, just as you’re not claiming that you do.

Anyway, like I said, it ultimately doesn’t matter why, all that matters is the what.

And for that they should hang. Isn’t going to happen, I know, but that’s what should happen. Right next to the leakers. Side by side, dangling in the wind like ghostly chimes.

To take no serious action against the NYT for yet another release of classified information in a time of war would be tantamount to aiding and abetting in their crime(s).

Some Points made so far that I take issue with:
1) Begin a boycot of the NYT advertisers:
(Even if successful with its current list of advertisers, forcing them to either curtail or end all ads in the paper, those companies with a farleft stance will step up to the plate to try and offset the boycot by picking up where the scared advertisers left off)
2) Don’t force legal action as the same sort of action can (knowing the left it will) be used against conservative orgs and media outlets down the road:
To me this is almost akin to the “Big Brother” myth the left pushes on a daily basis…to be sure if the left gets into power again it will be Clinton redux again where IRS, DOJ, etc. will be used to silence and intimidate administration critics (interestingly the current admin has not sunk to the Clinton level of politics…go figure)
3) It is high time to make an example of certain members of the MSM for their willful disregard in leaking classified material which is not only treasonous but their arrogance (no one elected the Times to public office, and only the President can authorize the release of classifed material)
4) The point that professional terrorist moneymen already are aware of programs like SWIFT thus its a nonissue.
(Since recent studies show that the rise in terrorism will be not from professionals in al-Qaeda but from amatures like the recent bust of the miami 7, why provide more info than neccessary?)
5) If we review some of what the media has released without a care for the ramifications on the war on terror we see:
(NSA wiretaps, usefull program until the story was released, afterwhich, sigint dropped like a rock…thank you NYT.)
(The Gitmo koran in the toilet story…very motivating (for the terrorists) except it never happened. Thank you Newsweek)Where will this release of National Security info lead? Will a reporter, gee I don’t know from the NYT release a complete list of say the U.S. Nuclear Launch Codes calling it another example of the puplics right to know?
People may shake their heads on that, but 5 years ago, would we ever dream the MSM would do what they are currently doing not for public right to know but for pure partisan politics? We have Freedom of Speech in America, but that is not an absolute right…its time we informed the MSM of this fact, and not a moment too soon.

(Continuation of previous post which I didn’t have the opportunity to finish for some technical reason I’ll never figure out.)

Allahpundit,
Now that I understand your point, I am not persuaded that you have a valid point. If an individual deliberately and with premeditation commits an act that results in the taking of an innocent life, that act is prosecuted as murder in the first degree. On the other hand, if an individual takes an innocent life without premeditation but through an act that is so reckless and wanton that any reasonable person would expect injury or death to occur, it is prosecuted as murder in the second degree. Most of us feel Risen and Lichtblau are guilty of the former misdeed, i.e., a deliberate attempt to disrupt our intelligence gathering to allow terrorists to continue to cause death and mayhem. You, however, believe that their motive is merely misguided due to their pathological hatred of the President and without malice.
I would simply point out to you that despite their motive, the act of publishing the details of a covert operation that could result in the escape of terrorists and additional terroristic acts by those they fund is so reckless, wanton, and indifferent to human life that the law interprets the act as being deliberate. We wind up at the same point and their motive is irrelevant. You are continuing to say that we should tone down our rhetoric because they are only second degree murderers, not first degree murderers. In either event, they could be murderers if their treasonous act results in more terrorism-related deaths by those they assisted in avoiding apprehension. Murder is murder and it is indefensible, regardless of motive. The act of treason they committed was deliberate regardless of how much deliberation they allegedly devoted before committing it. They deserve no consideration and should be stopped by any means necessary. Your defense of their motive is without merit.

Do you have any kind of personal relationship with Risen, Lichtblau, or someone else at the NYT? If so, just say so; we will understand your reluctance to condemn them.

No, csjd, I don’t, and I don’t care for the insinuation. Call me an idiot if you like, but don’t accuse me of bad faith. It’s supremely insulting. How would you like it if I dismissed your honestly held opinions by accusing you of being a secret operative of the Bush administration?

The former is an “ends justifies the means” argument. The latter has nothing to do with that unless you are asserting that the careful deliberation of the NYT whether to publish the leaks justifies the publication. It is a complete non-sequitur.

It’s not a complete non sequitur, unfortunately. The question of how far the president should go to protect Americans is entirely germane to a discussion about punishing journalists. You’re correct that this particular case isn’t an ends-justifies-the-means situation; there was no abuse of presidential power, so the means were perfectly justified on their own terms. But look at easy87′s latest comment: “If it is your son that is serving in Iraq, I think you may have a different opinion about NY Times.” Or go look at the photoshop posters that people sent in to Michelle. Very few of them focus on the fact that the program was legal (i.e., the means); almost all of them focus — understandably — on the ends, the fact that it was effective and saved lives. So I repeat my hypothetical: what if Bush has reason to believe that the Times is about to expose another NSA program, one which, it turns out, is unambiguously illegal? Should he cut the power to the Times building and send the National Guard in to surround them? Lives are at risk, after all. As you say:

[T]he act of publishing the details of a covert operation that could result in the escape of terrorists and additional terroristic acts by those they fund is so reckless, wanton, and indifferent to human life that the law interprets the act as being deliberate. We wind up at the same point and their motive is irrelevant. You are continuing to say that we should tone down our rhetoric because they are only second degree murderers, not first degree murderers…

The act of treason they committed was deliberate regardless of how much deliberation they allegedly devoted before committing it. They deserve no consideration and should be stopped by any means necessary.

See why I worry about means-ends logic? There’s not even a whiff of concern here about possible government abuse of power. So I’ll rephrase my hypothetical: if Bush thinks the Times is on the brink of committing “second-degree murder” by exposing an illegal government counterterror program, does he have carte blanche to go in there and shut them down? Isn’t the legality of the program a key to determining whether publication is appropriate or not? You do want to know if the government is breaking the law, don’t you?

What I don’t understand is your criticism of my “demonizing” these two traitors. They deserve less than demonization in your opinion? Why? Again, because they allegedly deliberated whether to publish the leaks? We are to give them credit for that? On what grounds?

My point about demonizing them was in response to your assertion that they feel “no compunction” about Americans dying. As Misha says, you have no way of knowing that. That’s why I emphasized the fact that they deliberated over it; deliberation would suggest some degree of compunction, would it not? Doesn’t excuse their decision to go ahead and publish but it does tend to undermine this cartoonish image of Bill Keller cackling with glee at the thought of Americans being blown up because it helps advance his master plan of blackmailing the American electorate into voting Democrat. As does my point about them having possibly withheld information in the past out of concerns for national security. Misha’s right when he says that none of this really matters much for practical purposes, but I do think it’s worth mentioning if only to rebut Ace’s apparent belief that these folks are moral monsters for whom American lives are little more than political chits to be used as necessary. I give them more credit than that. But not much.

Finally, re: your Oswald analogy, I think the Times would say that they’re blowing the whistle on Oswald (Bush) before he can fire. In reality, of course, they’re blowing the whistle on the cop who’s about to shoot Oswald (Osama) before he can fire.

My point about demonizing them was in response to your assertion that they feel “no compunction” about Americans dying. As Misha says, you have no way of knowing that.

The act of spending time to discuss if they should print the news even though life could be lost because of the news…..is..the evidence you need to prove that they have “no compunction”.

Do any human being that value life need even to discuss?

Allah, you are digging deeper and deeper into the hole. It is time to get out.

On one side you think Ann Coulter’s comment of the 9/11 widows are cruel because she used the word “enjoy”, but on the other side you think it is ok to weigh human life against printing of a piece of news.

Allahpundit,
I’m not at all sure we are on the same page, but I will attempt to address your issues.

You: So I repeat my hypothetical: what if Bush has reason to believe that the Times is about to expose another NSA program, one which, it turns out, is unambiguously illegal? Should he cut the power to the Times building and send the National Guard in to surround them?
Answer: Absolutely not. The President should do what every American citizen has the right to do, i.e., petition the appropriate court for an injunction to enjoin the publication of information that is likely to cause harm and for which there is no adequate remedy after the publication. The party seeking to publish the information has its day in court to justify its intended actions.

You: See why I worry about means-ends logic? There’s not even a whiff of concern here about possible government abuse of power.
Answer: No, I don’t see it at all because there isn’t a whiff of concern that the government in any way is guilty of abusing its power. Not even the NYT itself questioned the government’s authority to conduct the investigation. So what is the motive for publishing the leak? Abuse of power is a straw man and carries no validity. Was the motive merely the pathological hatred of the President as you have said? If so, then the abuse of power argument is patently false and cannot possibly justify the revelation of a legal, secret method of intelligence gathering.

You: Isn’t the legality of the program a key to determining whether publication is appropriate or not? You do want to know if the government is breaking the law, don’t you?
Answer: Not in this case. There is no reasonable argument that the legality of the program is in question. That is not the motive for publication and you and everyone else know it.

You: My point about demonizing them was in response to your assertion that they feel “no compunction” about Americans dying. As Misha says, you have no way of knowing that.
Answer: First, I can’t find where Misha said anything of the sort. Moreover, how do I know that these traitors feel no compunction about the loss of American lives? Because they published the piece with no legitimate reason to do so other than the malice they harbor for this President and the Americans who elected him. I don’t buy into the “blackmail” theory; that is a stretch and is speculative at best. The fact is that the act of publishing this information was purely malicious. Further, their alleged deliberation is not an indicator that they have some degree of compunction. How do I know that? Because they published the story in spite of its probable results. I don’t have a cartoonish image of Keller or anyone else cackling with glee; I have the impression of a supremely arrogant group who demonstrate reckless and wanton indifference to the possible consequences of their treasonous act. Just look at the arrogance in their assertion that they get to decide what is in the national interest and, based on that judgment, they get to flaunt the laws of this country by publishing classified information. You need no more evidence of malice than that. If death results from the publication, it is murder. Any reasonable person knows that.
When a news organization releases information that it knows to be classified, knows that the publication of which is illegal, and could produce consequences up to and including the death of innocents in this and other countries, and does so with absolutely no legitimate motive, they get absolutely no credit for anything, including some alleged deliberation.
These immoral and depraved monsters deliberately and with the highest degree of arrogance and malice illegally revealed secret information, obtained through an illegal leak, that without the slightest doubt has had a lasting, negative impact on this nation’s ability to prevent terrorism, death, and destruction within its borders. Their degree of contempt for the lives of Americans is unparalleled and cannot be excused or mitigated. Keller, Risen, and Lichtblau must be stopped from inflicting further damage to this country by any means necessary. There can be no rational argument to the contrary.

Regardless of whether you think the Times should be prosecuted, the boycott is a good idea. The question is – how? The only boycott I ever participated in is French goods and there were numerous websites listing the companies involved.

Would it be best to start with the top 5 companies that advertise in the Times? It would be easier for people to remember 5 companies, and therefore really impact their sales until they pull the advertising. At that point, we could go after the next 5 top, … Anyone know of a list somewhere of these advertisers? If not, anyone willing to keep track of this?

Also, the New York Times Company owns About.com, The Boston Globe (boston.com), the International Herald Tribune (iht.com) and some other regional websites – make sure you immediately cease any activity on these sites (or cancel your subscription).

After reading all of the above, I stand with the legal descript, in part: They interfere or obstruct legitimate Government activity; from “Here’s the DOJ’s page on 18 U.S.C. 371, the federal conspiracy statute.” The leakers AND the Times did both, it will be proved out.. if we go to court.
My thoughts on the issue Allah brought up: “they spent weeks listening to the administration’s objections and debating amongst themselves whether to publish it.”
After much thought, I believe, strongly believe, that the ‘debate’ was NOT so much how many lives will /could be lost by publishing, but whether or not the Times could get away with it.
The Times has not won me over on matters of moral standing, not at all.

The very least the Administration could do is pull the Executive Branch and Defense Department press credentials from every NYT-associated reporter. This is NOT a violation of the first amendment, any more than not giving credentals to reporters from the National Enquirer is. Freedom of the press doesn’t mean that you have to put up with every organization within the press, especially those proven to be irresponsible.

From a purely practical point of view, making Keller and the Times reporters do the perp walk would cause a constitutional crisis no matter how “legal” the prosecutions would be or how justifiable they would be under the present circumstances.

This is the “sky is falling” tactics being used again in this argument.

There will be no constitutional crisis. No one dare saying the NY Time is above the law! We prosecute NY Times on criminal charges of leaking classified information. If we go after those that leaked out Plame’s ID with such a vigor that no adminstration officials are spared, then we should do the same here that no news reporters are spared. If a news report violate the law, they must be prosecuted. NO ONE IS ABOVE THE LAW!

Let the court decide if leaking clasified information intentianally is protected by the second amendment.

Amen. We are a nation based on the rule of LAW. The Congress and the NTY are NOT ABOVE THE LAW. Stuff like this leak story, and the crimes of Reps McKinney and Willam Jefferson make me sick, as they seemingly get a pass from prosecution.

Mr. Treacher,
You don’t like the use of the term “traitors” to describe Mssrs. Risen, Keller, and Lichtblau? What descriptive term would you use in referring to these find upstanding citizens who claim to speak for you on matters of determining what is in the public interest and national security? And who openly flaunt felony laws and assert the right to do so with total impunity? And who deliberately publish, with no legitimate reason and with malice, secret information exposing a government surveillance program with a probable result that terrorists and those who fund them will escape apprehension and continue to conduct terrorist activities in this country? Just how would you term them?

I would like to add my 2 cents. Although I don’t agree with NYT or LAT publishing the stories, I think the first thing that needs to be done is to find the leakers and punish them. While I was in the navy, I had a Top Secret clearance. I knew then and know now, that I cannot in good conscience pass any classified information to a person that doesn’t have the “need to know” and the clearance. There is specific punishements for that. After retiring, I am still not allowed to talk about certain issues and I wouldn’t because my oath to service also applies to the american people that I supported and defended. Lets take care of the leakers first and foremost!

You don’t like the use of the term “traitors” to describe Mssrs. Risen, Keller, and Lichtblau? What descriptive term would you use in referring to these find upstanding citizens who claim to speak for you on matters of determining what is in the public interest and national security? And who openly flaunt felony laws and assert the right to do so with total impunity? And who deliberately publish, with no legitimate reason and with malice, secret information exposing a government surveillance program with a probable result that terrorists and those who fund them will escape apprehension and continue to conduct terrorist activities in this country? Just how would you term them?

I’m not sure I’m allowed to use the term here, but I think they’re [another word for where the poop comes out].

I agree that the act of deliberation shows some compunction, but only in cases that do not involve life and death. To me it shows no degree of compunction to waiver and hesitate on an issue of life and death.

At that point, the act of deliberation implies the deliberators are unsure that saving lives and possibly preserving the nation are more important than what? They have not revealed a list of what precedes lives and country on their list, except some kind of political gain.

I believe the motive is political gain because the same persons did not fight this battle with the Clinton administration.

Therefore to me, the act of deliberation in this case is proof absolute of despicable character and criminal behaviour. This is the woman in the story of Solomon who would let the baby be cut in two, rather than let the other mother have the baby. Unfortunately the baby they are willing to sacrifice is my nation.

“And Romeo — criminal law is totally focused on the defendant’s mental state (”mens rea”). Except for a very few crimes (like statutory rape), mens rea is an element that always needs to be proved”

Mental state is not considered in every criminal case. It is inserted mostly in two situations, where the accused is considered to have been medically mad and not capable of reasoned judgement, or when the specific crime allows for moments of passion.

Mental state is normally brought in for only extreme crimes, by the defense who is gaming the law or the prosecution who pities the defendant, or to in the case of minor crime, to remove a confirmed nutter from the streets for public safety. In other words, it is used pragmatically when useful. There is no automatic consideration of mental state, or our courtrooms would be very different indeed.

Myself, I don’t give a chickens rump for the motives of the grey-hearted former Lady.

I might add, WWLD? What would Lincoln do? Lincoln did make many moves above the pale to win his war and preserve the union. He won. Bush is no Lincoln in these matters. Hopefully, this war we fight will not require a Lincoln. I consider Lincoln a great hero.